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State, GOP lawmakers ask Supreme Court to re-hear case involving attorneys' fees • Daily Montanan [1]

['Blair Miller', 'More From Author', '- March']

Date: 2024-03-01  

The State of Montana on Friday asked the state Supreme Court to re-hear a case after the majority of justices in late January said that lawyers who successfully challenged portions of a 2021 bill as unconstitutional were entitled to attorneys’ fees because of legislative constitutional violations.

In the petition for a rehearing, the state’s attorneys say the Supreme Court “moved the guideposts” by finding the Legislature had acted in bad faith and had overstepped the separation of powers by making judgments on the Legislature’s motives and rules – ignoring arguments made by the state and claiming the court fabricated its own.

“While the Court may adjudicate claims under Article V, § 11, it cannot inquire into the regularity or irregularity of internal legislative proceedings under Article V, § 10(1),” the state told the court.

In a 5-2 opinion issued Jan. 31, the Montana Supreme Court found that attorneys for Upper Seven Law and attorney Raph Graybill were entitled to seek attorneys’ fees after they challenged two provisions of Senate Bill 319 from 2021 that were added into a bill in the final days of the session in a free conference committee, where the committee heard no public testimony.

The bill’s title was “an act generally revising campaign finance laws,” but Forward Montana, the Montana Association of Criminal Defense Lawyers, and several other attorneys sued over the last-minute amendments to the bill, which included a requirement that judges recuse themselves in cases where attorneys for either party donated more than $90 to their campaign, and another that prohibited political committees from registering voters on public college campuses.

A district court enjoined those two amendments just before they were to take effect, saying those amendments did not relate directly to campaign finance and violated the constitution’s requirement that a bill cover only one subject at a time.

Attorney General Austin Knudsen declined to appeal the decision, but the district court judge said that the plaintiffs’ attorneys could not seek attorney’s fees because Knudsen did not act in bad faith defending the bill and typically, fees are not awarded in such cases.

Graybill and Upper Seven Law attorneys Rylee Sommers-Flanagan and Constance Van Kley appealed the decision not to award attorneys’ fees to the Supreme Court, which issued its opinion just more than four weeks ago.

Writing for the majority, Chief Justice Mike McGrath found that the attorneys were “vindicating important constitutional interests” that Knudsen did not defend. He said that while typically in “garden variety” constitutional challenges, courts do not award attorney’s fees, this case was different because the Republican-led conference committee added portions of bills that had been killed earlier into the session into SB 319 that he said were outside the scope of the bill’s title and because the provisions were found to be unconstitutional.

“Appellants vindicated important constitutional rights, and our typical judicial restraint from interference with the proper functioning of other branches of government was overcome by the unconstitutional actions and willful disregard of legislative standards in adopting these sections,” McGrath wrote.

But Justices James Rice and Dirk Sandefur dissented, saying prior case law showed attorneys’ fees should not be awarded in the case and that the judicial branch was wrongfully stepping into the business of the Legislature, another branch of government.

“The Court’s use of the doctrine as a measure to punish the Legislature is a drastic departure from the purpose of the doctrine as established in our precedent,” Rice wrote in the dissenting opinion.

The majority’s decision also incensed Republican legislative leadership, who wrote several editorial columns published across Montana that said the courts were improperly stepping on the toes of the Legislature, which is tasked with creating the law. The lawmakers also said the court had misinterpreted legislative rules concerning bill titles and conference committees.

State says court ‘moved the guideposts’ with fees decision

The petition for rehearing goes through several instances in the past decade in which the Legislature did put provisions of other bills into another bill with a broad title during conference committees, saying the court was “unjustifiably” questioning the Legislature’s own rules and that the state constitution prohibits awarding attorneys’ fees simply because a court disagrees with the Legislature’s intent with a bill.

The filing says the court ended up agreeing with the plaintiffs in what the state contends was the court’s creation of “a second, extraconstitutional veto point” and said the plaintiffs “want to chill executive branch defense of legislative acts through litigation.”

The court’s decision primarily surrounds the question of which doctrine should be applied in awarding attorneys’ fees, since precedent says that “garden variety” challenges should not result in the awarding of fees.

Since the majority opinion found the case involved important constitutional interests and was not a “garden variety” case, the decision could implicate other cases in which private parties are challenging the constitutionality of bills passed by the Legislature and whether the attorneys that successfully challenge those measures should get paid out by the state.

Republican legislative leadership asks to file brief supporting state

Minutes after the state filed its petition Friday, Republican legislative leadership filed a request with the court to file an amicus curiae – or “friend of the court” – brief supporting the state’s argument, along with the brief itself as an attachment. The court granted the lawmakers leave to file the brief late Friday afternoon.

“The Montana Supreme Court’s recent decision contains numerous errors and potentially devastating impacts to the Legislature’s ability to effectively make public policy,” Senate President Jason Ellsworth, R-Hamilton, and House Speaker Matt Regier, R-Kalispell, said in a joint statement. “We are urging the Court to reconsider and modify its decision to correct those errors and avoid unintended consequences.”

In the proposed brief, the lawmakers elaborate on the state’s stance that the court was overstepping its boundaries into the legislative branch, saying that if the decision is upheld, it would negatively affect lawmakers’ right to free speech and ability to do their jobs.

“The decision will impair legislative function and independence because legislators are now exposed to scrutiny of legislative procedure in search of bad faith to win a fee award,” the brief says. “Legislative rules are the prerogative of the legislative branch. So long as those rules do not conflict with the Montana Constitution, the judicial branch is constitutionally restrained from interpreting and applying legislative rules.”

The lawmakers say that free conference committees, in which a bill can be amended at-will so long as the amendments fit within the bill’s title, are a normal part of the legislative process and that pieces of other bills can, and often are, added into other measures in such committees, which often occur in the final days of the session.

The brief also argues that McGrath knocking lawmakers for not allowing public participation in the free conference committee was incorrect because public comment was not allowed in those committees until the 2023 session.

It says there are instances when procedure at the legislature can be imperfect, and at times must be streamlined, in order to effectively pass bills, and said “the innocent byproduct of end of session time constraints” should not lead to a judgment the legislators were acting in bad faith.

“The Court’s decision to impose liability for the failure to follow legislative rules and norms will have numerous unintended consequences. Strict adherence to rules as interpreted here will require allocation of time and resources that do not exist. In addition, certain bills will not survive without legislative discretion to modify rules or norms,” attorneys for the lawmakers wrote.

Plaintiffs’ attorneys say legislators rehashing same arguments

Now that the state has filed its petition with the court, plaintiffs’ attorneys will have 15 days to file an objection, after which the court will decide whether to hear the case again.

Sommers-Flanagan, Van Kley, and Graybill said in a statement that the lawmakers’ proposed brief was “an extension of disgruntled legislators’ editorial campaign in newspapers across the state.”

“The facts are unchanged: the Montana legislature hijacked a bill, froze the public out, and violated the constitution. Rather than admit the mistake and move on, they wasted taxpayer money defending it for years, and now they are attacking the Court for correctly deciding the issue before it,” the three said in a joint statement. “This is the Attorney General and his friends dragging out proceedings using state time and resources to rehash arguments they’ve already made.”

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